Preliminary evidence gathering under Dutch civil procedural law

Nieuws 15 March 2018

Aim and timing
Preliminary evidence gathering is a Dutch procedure initiated at the outset of litigation, either before or after a claim is filed with the court. It enables an applicant to discover evidence of facts and circumstances that they will be required to prove in any future proceedings, and helps them gain greater certainty regarding the issues that may be of importance for the eventual decision on the dispute. This allows the applicant to make a fully informed decision as to whether it is advisable to initiate proceedings or to continue with an existing claim.

Through performance of preliminary evidence gathering, unnecessary debates – and thus any unnecessary delays – can be avoided. Before initiating legal proceedings, parties can assess whether they will succeed in producing the required evidence. Furthermore, it is more likely that the parties will be able to reach a settlement or to come to terms at an earlier stage based on evidence discovered before the proceedings develop further.

Three options
Dutch procedural law provides for three ways of gathering preliminary evidence:

Provisional examination of witnesses;
Provisional expert opinions; and
Court inspection of the premises.

All three of these can be requested by means of an application to the court. This application must be sufficiently specific, relevant to the case, and must concern factual questions which are suited to the type of evidence requested. The application is not required to specify exactly on which facts and statements the applicant is planning to base its claim, or which witnesses will be examined for which facts. Furthermore, the applicant does not have to comment on the exact nature of the proceedings that will be instituted or - if applicable - on the extent of the loss suffered.

Grounds for rejection
Presuming that an application is admissible, it may be rejected by the court on one of the following grounds:

That the application constitutes an abuse of process;
That the application conflicts with the principles of due process of law;
In the case of witness evidence, that the applicant does not have sufficient interest in the evidence that may be provided by that witness; or
That in the court's view there is some other substantial objection.

Evidence gathered through this preliminary procedure has the same evidential value in any trial proceeding as any evidence gathered through the ordinary procedure, on the condition that all parties were present at any preliminary evidence hearings. If not all parties were present, records of any provisional expert opinions can be submitted as ordinary documents in the trial.

In case of any questions in relation to this article, please contact Sanne Geldof or any of the other attorneys of our Corporate & Commercial Litigation department.

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